The Study On Undecided Validity Contract

Undecided validity contract is an important kind of contract. Its system designed accord to the principle of encouraging business, and tolerate the contract which are short of the party qualification element, allow the authorized party make up the deficiency of authorization with admitting retroactively. This system in favor of reducing void contract, bringing down the business cost, and promoting the circulation and increment of property. So this system have significant practical value. But the academe's research on the kind of contract is not deep. Scholars'understandings of undecided validity contract are not consistent. The system has many questions needed to discuss. This paper try to study the theory of undecided validity contract, clean up the inherent logic, and provide deep and proper nomological explain for the system.The paper has five parts.The first part analyzes and clarifies the concept of undecided validity contract. The name of"undecided validity contract"is unprecise. On account of academe's habit, the author reserves the customary name. But we need to confirm the concept strictly. Undecided validity contract is a kind of contract which has come into existence, but has not gone into effect by being short of the party qualification element. It will take effect when the authorized party admits retroactively. And then, the paper analyzes the essential of undecided validity contract,and educe the conclusion that the kind of contract is ineffective contract.The second part studies the effectiveness of undecided validity contract before it is admitted retroactively. Its effectiveness features are: firstly, the contract is ineffective provisionally, but it may become valid. The contract has come into existence, but has not gone into effect by being short of the party qualification element. On the one hand, the contract has come into existence because of the two parties have come to an agreement, has the ordinary effectiveness but especial effectiveness. On the other hand, the validity elements of the kind of contract are not all ready. But it doesn't offend forced laws or virtuous customs. So the law doesn't need to regulate it void, but make it ineffective. Secondly, after the contract was admitted retroactively, the contract becomes valid. Admitting retroactively authorizes the party and makes up the deficiency of the party qualification. So the contract's effectiveness obstacle eliminates. Thirdly, the protectation to the other party. The contact law endue with the recall right to the other party, in order to making the other party have the right to quit the contract relationship. Furthermore, the law regulates the urgency right in the interest of ensuring contract effectiveness and enhancing efficiency.The third part educes the conclusion that the sort of undecided validity contract has two kinds: minor conclude contract and unauthorized agent conclude contract. Unauthorized agent concludes contract has two especial forms: oneself agent concludes contract and both agent conclude contract. Unauthorized disposition contract on the provision 51 of Contract law has general effectiveness elements. It doesn't belong to undecided validity contract but effective contract. Whether the authorized party admits retroactively or not, and whether the disposition party acquires the disposition right or not, they will not influence the effectiveness of the contract. Just if they are not, the disposition will not result in the change of the property. On this condition, the disposition party needs to bear the responsibility of breach of contract.The forth part discusses minor conclude contract deeply. The regulations about the effectiveness of minor conclude contract need to considering elements of the advancement of science and technology and the change of society. Explaining loosely the concept——"the contract of adapting to minors'age, intelligence and mental"within the scope of legal aim. The law should recognize the contact that minors conclude for disposal property within the scope which their legal representatives assure. For the contract which minors can't conclude independently, the law should endue them the right to admit retroactively when they become adults due to growing up, laboring or being composmentis. On the time, the right to admit retroactively only belongs to the party. And we should understand"bona fide"like this: it means the party doesn't use the deficiency of minors. Even if the party have known the other party is a minor, it will not influence the judgment of"bona fide". If the minor tells a lie that he has got his legal representatives'permit, the other party has the right to recall the contract. When the contract is determined void certainly, minors don't bear any contract liability. If minors have lied, he will bear damagement compensate liability according as tortious law just only his defect compose gross defect or intent.The fifth part analyzes unauthorized agent conclude contract in detail. The kind of contract will not take effect before it be admitted retroactively. The right to admit retroactively belongs to the assignor commonly. But when the others beyond the legal representatives concludes contract in the name of minors, the right to admit retroactively belong to the legal representatives. If the assignor refuses to admit retroactively, the unauthorized agent ought to bear liabilities. The unauthorized agent bears the liability to the third party is blameless liability or legal assurement liability. The content of this liability lie on the unauthorized agent's subjective condition. If the unauthotized agent couldn't prove that he have been authorized, and the assignor refuse to admit retroactively, the other party can request the agent to carry out or compensate. If the agent didn't know he was short of authorization, he only needs to pay the trust interests damnify to the other party, within the performing interests. Composing elements of the liability are: the action of unauthorized agent; the other party is bona fide party; the assignor refuse to admit retroactively; the other party doesn't recall the contract; the unauthorized agent needn't has defect, because the liability is blameless liability; the unauthorized agent is an adult; the action of unauthorized agent is not accord with the appearance agent. The effectivenesses of unauthorized agent concluding contract are the urgency right and the recall right to the other party. Just only bona fide party has the recall right.On the basis of foregoing study, the paper tries for structuring the institution of undecided validity contract corresponding with other civillaw systems, in order to exert its functions of carrying out the principle of contracting freely, maintaining business order and enhancing efficiency, and offer some advises for future research.